Judgments nº T-547/18 of Tribunal General de la Unión Europea, March 26, 2020

• Resolution Date: March 26, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-547/18

(Civil service - ECB staff - Programme of support for transition to a career outside the ECB - Rejection of an application to take part in that programme - Eligibility conditions - Different lengths of service required depending on whether a staff member is in a single salary band or a salary broadband - Allocation to a salary band on the basis of the type of employment - Equal treatment - Proportionality - Manifest error of assessment)

In Case T-547/18,

Raivo Teeäär, residing in Tallinn (Estonia), represented by L. Levi, lawyer,

applicant,

v

European Central Bank (ECB), represented by D. Camilleri Podestà and F. Malfrère, acting as Agents, and by B. Wägenbaur, lawyer,

defendant,

APPLICATION under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union for, first, annulment of the decision of the ECB of 27 February 2018 rejecting the applicant’s application for the pilot programme of support for transition to a career outside the ECB and, in so far as necessary, the ECB’s decision of 3 July 2018 rejecting the applicant’s special appeal against the abovementioned decision of 27 February 2018 and, secondly, compensation for the damage he allegedly suffered as a result of that decision.

THE GENERAL COURT (First Chamber),

composed of P. Nihoul, acting as President, J. Svenningsen (Rapporteur) and U. Öberg, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 9 July 2019,

gives the following

Judgment

Background to the dispute

1 On 1 July 2004, the applicant, Mr Raivo Teeäär, took up his duties at the European Central Bank (ECB), starting his career in that institution as a Senior Production Expert in the ‘Banknotes’ Directorate. When he was recruited, the applicant was 50 years old. In accordance with the vacancy notice, he was allocated to the F/G salary band of the ECB salary structure, which that role fell within. In that salary band, he was placed at step 136, given the length, level and relevance of his professional experience.

2 Since his recruitment, the applicant has progressed steadily within his salary band. In January 2011, after seven years and six months, he reached the ceiling for that salary band, which corresponds to step 169. Thereafter, no further advancement was possible in that salary band.

3 The ECB salary structure consists of 12 single salary bands, designated by the letters A to L, and two salary broadbands, designated by the letters E/F and F/G. Each salary band includes several steps which go from a minimum to a maximum salary value. The salary broadbands, such as the F/G salary band, correspond to the integration of two single salary bands, here the F salary band and the G salary band, so that the start of the F/G salary band is the same, in terms of annual income, as that of the F salary band, whilst its ceiling is the same as that of the G salary band.

4 Specifically, the F salary band comprises steps 1 to 98, the G salary band comprises steps 1 to 99 and the F/G salary band comprises steps 1 to 169, having regard to a partial overlap between the F and the G salary bands. Steps 71 to 98 of the F salary band correspond to steps 1 to 28 of the G salary band.

5 Accordingly, the salaries associated with steps 1 to 98 of the F salary band correspond to the salaries associated with steps 1 to 98 of the F/G salary band and the salaries associated with steps 1 to 99 of the G salary band correspond to the salaries associated with steps 71 to 169 of the F/G salary band.

6 The allocation of staff members to a given salary band, whether single or broad, is determined by the type of post occupied, as is apparent from an ECB document entitled ‘Allocation of Positions to Bands - List of Generic Job Titles’. For the same type of post, progression is possible only within the salary band thus determined, that is from one step to a higher step in the same salary band. A change of salary band is possible only following a recruitment procedure proper for a different position in that other salary band (internal promotion), unless there is an exceptional ‘ad personam’ promotion or a position upgrade.

7 On the basis of Article 36.1 of the Protocol on the Statute of the European System of Central Banks and of the ECB (ESCB) and the Rules of Procedure of the ECB, the Governing Council of the ECB adopted the Conditions of Employment for Staff of the ECB (‘the Conditions of Employment’) by decision of 9 June 1998, amended on 31 March 1999 (OJ 1999 L 125, p. 32). In the version applicable to the present proceedings, Article 11(e) of the Conditions of Employment concerns support for a career transition outside the ECB (‘CTS’) for ECB staff members who resign under the conditions and in accordance with the procedure laid down by the ECB Staff Rules (‘the Staff Rules’).

8 In order to implement Article 11(e) of the Conditions of Employment for the first time, the Executive Board of the ECB adopted Decision ECB/2012/NP18 of 24 August 2012 amending the Staff Rules as regards assistance for voluntary transition to a career outside the ECB, which inserted Article 2.3 of the Staff Rules, which introduced a pilot programme for CTS, limited to a maximum of 50 persons, which was accessible in 2013 and 2014. Article 2.3.1 of the Staff Rules provided that staff members with contracts of indefinite duration who had remained for at least 8 consecutive years in the same single salary band or at least 12 consecutive years in the same salary broadband satisfied the conditions for eligibility under the CTS pilot programme.

9 On 12 August 2014, the applicant applied for the CTS pilot programme (‘the CTS application’). In accordance with the procedure, the CTS application contained a notice of resignation taking effect on 13 December 2014, subject to the acceptance of that application. In addition to that application, the applicant submitted a memorandum setting out the reasons for his request that his application be taken into consideration despite the fact that he did not satisfy the requirement of 12 years’ service laid down in Article 2.3.1 of the Staff Rules for staff members in a salary broadband.

10 The CTS application was rejected by decision of 18 August 2014, on the ground that the applicant did not satisfy the condition as to length of service, since he had remained in the F/G salary broadband for less than 12 years.

11 On 8 September 2014, the applicant informed the relevant ECB departments of his decision to retire, with effect from 18 December 2014.

12 The request for an administrative review of the decision rejecting the application for CTS, made by the applicant on 14 October 2014, was rejected by a decision of 9 December 2014.

13 The applicant retired with effect from 18 December 2014.

14 The complaint lodged by the applicant on 9 February 2015 against the decision of 9 December 2014 was rejected by a decision of 2 April 2015.

15 Following the action brought by the applicant on 9 June 2015 against the decision of 18 August 2014, that decision was annulled by the judgment of 17 November 2017, Teeäär v ECB (T-555/16, not published, EU:T:2017:817), on account of the lack of competence ratione materiae of the author of that decision.

16 Article 2.3 of the Staff Rules resulting from Decision ECB/2012/NP18, which established the CTS pilot programme, was repealed by Decision ECB/2017/NP19 of 17 May 2017 amending the ECB Staff Rules as regards support for voluntary transition to a career outside the ECB. That decision established a new CTS programme, which was accessible from 1 July to 31 October 2017, setting a uniform condition as to length of service of eight years in the same salary band.

17 In order to comply with the judgment of 17 November 2017, Teeäär v ECB (T-555/16, not published, EU:T:2017:817), the Executive Board of the ECB adopted, on 27 February 2018, a new decision on the basis of Article 2.3 of the Staff Rules in its original version, by which it rejected the application for CTS (‘the contested decision’).

18 The special appeal against the contested decision lodged by the applicant on 3 May 2018 was rejected by decision of the Executive Board of the ECB of 3 July 2018.

Procedure and forms of order sought

19 The applicant brought the present action by application lodged at the Court Registry on 14 September 2018.

20 The applicant claims that the Court should:

- annul the contested decision;

- if necessary, annul the decision of the Executive Board of the ECB of 3 July 2018;

- order the ECB to pay compensation for the material damage caused to the applicant, estimated at EUR 101 447, together with default interest calculated at the annual rate of the ECB’s main refinancing operations plus three percentage points;

- order the ECB to pay the costs.

21 The ECB contends that the Court should:

- dismiss the application;

- order the applicant to pay the costs.

Law

Admissibility of the evidence submitted at the hearing by the applicant

22 At the hearing, the applicant lodged an additional document, which he presented as a letter sent by the ECB to its Staff Committee before the introduction of salary broadbands within the ECB and as being capable of supplementing the reply given by the ECB to the written question put to it by the Court concerning the history and origins of the creation of those salary bands. When asked to specify the practical implications of that document, the applicant stated that it established that the introduction of salary broadbands should not have a negative effect for members of staff at the top of the G single salary band or the F/G salary broadband, whereas the introduction of CTS had such an effect for staff members in a salary broadband.

23 It should be noted that it is not apparent from those explanations that the document in question has any direct connection with the Court’s written question concerning the introduction of salary broadbands. Since...